Keeping Malpractice Allegations at Bay

Editor's Note: Co-authored by Steven J. Kinkel, JD, this article (with a modified title) appeared originally in several limited-subscriber publications in 1999, but is still relevant today and deserving of being shared with our larger chiropractic audience.

It has been suggested that in the litigious environment in which we live, the practice of chiropractic should be defensive and practitioners should constantly be watching their backs. An element of defensive practice is a good idea. Unfortunately, the idea can be taken to extremes, creating a paranoid atmosphere between chiropractor and patient. This is counterproductive and results in a negative working environment for the chiropractor.

Defensive chiropractic should not revolve around legal rituals, but instead should be based upon sound principles of patient care. Four components of patient care weigh heavily upon the doctor's ability to prevent or defend malpractice claims: 1) examination techniques, 2) justification of procedures and treatment, 3) record-keeping and 4) communication skills. Assuring the basics are covered is probably as effective as anything in preventing litigation.

Examination Techniques

Examination techniques utilized in chiropractic practice are influenced by several factors. The doctor's alma mater, year of graduation, experience, postgraduate education, adjusting technique, style of practice and patient population all play a role. Obviously, this creates diversity among chiropractors in patient evaluation.

Despite this diversity, there are basic principles which, if followed, provide for prevention and defense, if necessary, from malpractice claims. Diversity is a good thing. "One size" does not fit all, and there are few absolutes in the art and science of practicing chiropractic.

Taking a good history is probably the most important aspect of every examination. The majority of practitioners usually have a reasonable idea of the eventual diagnosis by the end of a good history. Historical information also dictates body regions to be examined and the examination procedures used.

While the majority of chiropractic patients have mechanical pathologies, screening for other pathologies of a more ominous nature is still necessary. When you hear hoofbeats, remember the occasional zebra.

Physical examination procedures are too numerous to list herein, but the following principle must be considered. Regardless of the procedures selected, the doctor should have a rationale for all tests used, a routine method of recording results, and a reference for their performance and interpretation.

Sticking with well-known, well-referenced procedures is a good idea. Using methods that are only used by a small group of practitioners, or that are not taught in chiropractic colleges or postgraduate training, carries some risk.

Justification of Treatment

This simply means having a logical reason for each procedure utilized during care. Remember, history findings determine which physical examination procedures to perform. History and physical examination findings determine which imaging and lab tests to perform.

History, physical examination, imaging and lab findings determine the diagnosis. The diagnosis determines the treatment. The patient's response to treatment determines the continuation or change in treatment and the ultimate prognosis. Do not let a fascination with a particular procedure or gadget disrupt the logic of this order. If someone questions the reasoning behind a test or treatment, there should be a simple answer.

Good Record-Keeping

Record-keeping is essential to giving good care and is valuable if litigation defense is necessary. Good records are an indication to jurors that the chiropractor is conscientious. What are good records? Good records tell the story of the patient's health in an organized, understandable manner. Details of the onset of the condition, the diagnostic process, treatment methods and the patient's response to care are all important.

Doctors of chiropractic have the advantage of picking the style of records they keep. Once a system is selected, the doctor has the obligation to use the system to its fullest extent. Record-keeping systems are only as good as the people using them. Doctors should choose a record-keeping system that reflects the method of their practice. This includes customizing forms and EMR systems, if necessary.

Using a system which does not match the methods used in a practice means the system will not be useful. Incomplete records do not assist in patient care and offer little or no defense for the doctor when needed.

The patient's response to care is often the most overlooked aspect of record-keeping. If the patient is improving, plateaued or completely unresponsive, it should be documented. The documentation should be fair to the doctor and the patient.

Doctors often record the patient's subjective complaints about a lack of improvement; yet fail to offer an explanation for the situation. Patients with these complaints are often guilty of missing appointments, not following doctor's orders, or participating in activities known to cause flare-ups. These situations should be differentiated from a general lack of response or natural deterioration of a condition.

The same principle applies to adverse clinical reactions. Post-exam or adjustment soreness is a common occurrence and should be so documented. Overemphasizing a mild reaction can come back to haunt the doctor.

An example of this can be found in a recent case involving cervical manipulation. A patient reported to the senior doctor in a practice that her neck was sore after an adjustment by an associate doctor. Instead of recording the event as post-adjustment soreness or mild reaction, the doctor documented that the adjustment was "too harsh." The comment of the senior doctor was not accurate.  It implied error and fault, rather than simply a reaction to the adjustment.

The senior doctor's comment was not fair to the associate, since he was not present when the adjustment was performed and recorded the comment without discussing the situation with the associate first. Records should be fair to the doctor and patient.

The note, as written, served as evidence that the chiropractor deviated from the standard of care by adjusting with too much force. In fact, the patient simply had some residual tenderness.

Communication

Communication that leads to a healthy chiropractor-patient relationship is an effective way to prevent a malpractice claim. The patient appreciates a kind, caring chiropractor who listens, evaluates thoroughly, and explains the need for and modes of treatment.

Patients wants to feel the doctor is interested in their progress and recalls them from one visit to the next. Patients do not want to feel as if they are "starting over" each visit. This is an example of how record-keeping and communication are related. Answering questions about treatment and generally being personable and professional are valuable in malpractice prevention. Some practitioners are so loved by their patients the average patient would not file a claim under any circumstances. Bedside manner counts!

Chiropractors often ask, "How can I avoid being sued?" The answer is, "You cannot." In our opinion, though, common sense and sound practice principles are the best ways to reduce the likelihood of being sued.